State v. Tulugu

[Cite as State v. Tulugu, 2011-Ohio-5134.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
)
VS. ) CASE NO. 10-MA-77
)
SRINIVAS TULUGU, ) OPINION
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Mahoning County
Court No. 4 of Mahoning County, Ohio
Case No. 10TRD1755AUS
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Paul Gains
Prosecutor
Ralph M. Rivera
Assistant Prosecutor
21 W. Boardman St., 6th Floor
Youngstown, Ohio 44503-1426
For Defendant-Appellant Attorney Rhys B. Cartwright-Jones
42 N. Phelps St.
Youngstown, Ohio 44503-1130
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: September 29, 2011
DONOFRIO, J.
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{¶1} Defendant-appellant Srinivas Tulugu appeals from a Mahoning County
Court No. 4 judgment convicting him of speed following a bench trial.
{¶2} On March 16, 2010, Trooper Michael Gurlea stopped appellant’s
vehicle which was travelling on Interstate 76. According to Trooper Gurlea, appellant
was travelling at 91 miles per hour in a 65-mile-per-hour zone. Trooper Gurlea
issued appellant a traffic citation for speeding.
{¶3} The matter was set for a bench trial. Appellant filed a pro se discovery
request for various materials regarding the laser device used to register his speed.
{¶4} The matter proceeded to trial on April 14, 2010, with appellant
proceeding pro se. Trooper Gurlea was the only witness. The trial court found
appellant guilty. It fined him $150 and ordered him to pay court costs.1
{¶5} Appellant filed a timely notice of appeal on May 10, 2010.
{¶6} Appellant raises three assignments of error, the first of which states:
{¶7} “THE TRIAL COURT ERRED IN ALLOWING THE STATE TO SUBMIT
EVIDENCE THAT IT DID NOT DISCLOSE DURING PRE-TRIAL DISCOVERY.”
{¶8} Appellant argues that he requested discovery information, which he
claims the state failed to disclose. He asserts that the information was in the court
file, yet no one provided it to him.
{¶9} In response, plaintiff-appellee, the State of Ohio, asserts that the
requested materials were available to appellant, therefore, it did not fail to disclose
them. Appellee points out that the State Highway Patrol filed the requested materials
on April 9, 2010. It contends that there is no requirement, either in rule or case law,
that requires the state to deliver the requested materials to the defendant. And
appellee argues that even if we were to find that it failed to disclose the requested
information, the violation was not willful and would not have benefited appellant’s
1. It should be noted that appellant has paid his fine and costs. Nonetheless, his appeal is not moot
because: “The imposition of points on a traffic offender's driving record is a statutorily imposed penalty
sufficient to create a collateral disability as a result of the judgment and preserves the justiciability of
an appeal even if the offender has voluntarily satisfied the judgment.” In re S.J.K., 114 Ohio St.3d 23,
2007-Ohio-2621, at the syllabus. Per R.C. 4510.035(C)(11)(b), appellant would have been assessed
two points on his driver’s license for this offense.
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defense.
{¶10} The pertinent discovery rule involved here is found in Crim.R.
16(B)(1)(c) which provides as follows:
{¶11} “(B) Disclosure of evidence by the prosecuting attorney
{¶12} “(1) Information subject to disclosure.
{¶13} “* * *
{¶14} “(c) Documents and tangible objects. Upon motion of the defendant the
court shall order the prosecuting attorney to permit the defendant to inspect and copy
or photograph books, papers, documents, photographs, tangible objects, buildings or
places, or copies or portions thereof, available to or within the possession, custody or
control of the state, and which are material to the preparation of his defense, or are
intended for use by the prosecuting attorney as evidence at the trial, or were
obtained from or belong to the defendant.”
{¶15} “Prosecutorial violations of Crim.R. 16 are reversible only when there is
a showing that (1) the prosecution’s failure to disclose was a willful violation of the
rule, (2) foreknowledge of the information would have benefited the accused in the
preparation of his defense, and (3) the accused suffered some prejudicial effect.”
State v. Joseph (1995), 73 Ohio St.3d 450, 458, citing State v. Parson (1983), 6 Ohio
St.3d 442, 445.
{¶16} On March 31, 2010, appellant filed his discovery request asking for the
manufacturer name, make, model, and serial number of the specific laser device
used in his case; a copy of the operation manual; all calibration records for the laser
device; department policies on testing; officer’s certification and training records;
officer’s copy of the traffic citation, duty report, and service record for the patrol car;
and an engineering and traffic survey for the highway on which the citation was
issued.
{¶17} In response, on April 9, 2010, either the prosecutor or the State
Highway Patrol filed with the court: (1) a certificate of calibration, including the name,
make, model, and serial number of the laser device used; (2) testing results for the
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laser device; (3) a certificate of accuracy for the laser device; (4) officer’s notes
regarding the traffic stop; and (5) and ESMD repair record for the laser device.
{¶18} Just prior to trial, the following exchange took place:
{¶19} “MR. TULUGU: I applied for discovery request, and I spoke to you
when I came here, and I also talked to the prosecutor on the same day.
{¶20} “THE COURT: Okay.
{¶21} “MR. TULUGU: And so far I have asked only of the public documents
that are maintained in the police department.
{¶22} “THE COURT: Okay. What have you asked for?
{¶23} “MR. TULUGU: I have asked for the manufacturer name, make, model
and operation manual of the specific laser device.
{¶24} “THE COURT: Okay.
{¶25} “MR. TULUGU: And calibration records and some policies on testing.
{¶26} “THE COURT: Did you go retrieve those from the State Highway
Patrol?
{¶27} “MR. TULUGU: I have -- I applied with the court, and I talked to the
prosecutor, but I have not received anything so far.
{¶28} “THE COURT: Yeah. You would have to go retrieve those. You would
have to get an order, I’d sign it, and you would go pick them up. They don’t deliver
them.
{¶29} “MR. TULUGU: I have provided my address here. I was expecting
that, you know, they would at least tell me, because I didn’t know that I have to go
and pick up the things.
{¶30} “THE COURT: Yeah. Sometimes that’s the disadvantage of, you
know, not having counsel, but that’s how it would work. I have the lawyers. I have
people go retrieve those items that they request, and then I would make them make
copies for me.” (Tr. 3-4).
{¶31} The trial court stated here that the requested discovery materials were
readily available to appellant. All he had to do was go to the State Highway Patrol
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Office to pick them up. The court indicated that this was the normal procedure for
such requests.
{¶32} Even though appellant proceeded pro se, he was bound by the same
rules and procedures as litigants who retain counsel. Miner v. Eberlin, 7th Dist. No.
08-BE-21, 2009-Ohio-934, at ¶11. Thus, although he may have been at a
disadvantage for not knowing the procedures for obtaining the requested materials,
he was nonetheless bound to follow these procedures.
{¶33} As indicated earlier, Crim.R. 16(B)(1)(c) in effect at the time of the trial
in this case provided that the prosecution permit the defendant to inspect or copy the
requested documents. Crim R. 16(B)(1)(c) did not require the prosecution to
physically deliver documents to the defense. State v. Thurman, (June 28, 1995), 2d
Dist. No. 14741; see, also, Dublin v. Streb, 10th Dist. No. 07AP-995, 2008-Ohio-
3766, ¶32-34. 2
{¶34} Five days before trial on April 9, 2010, appellant’s requested discovery
was filed with the trial court, including a certificate of calibration for a LTI UltraLyte
Laser Speed Detection Instrument (serial no UX012448), which was testified about at
trial, along with four repair records; a certificate of calibration for a MPH Doppler
Traffic Radar unit; certificates of accuracy for two tuning forks, 35 mph and 80 mph,
respectively; and the officer’s notes regarding the traffic stop. Here, however, it does
2. {a} Two and a half months after the trial in this matter, Crim.R. 16(B) was rewritten effective
July 1, 2010, in pertinent part:
{b} “(B) Discovery: Right to Copy or Photograph. Upon receipt of a written demand for discovery by
the defendant, * * * the prosecuting attorney shall provide copies or photographs, or permit counsel for
the defendant to copy or photograph, the following items related to the particular case indictment,
information, or complaint, and which are material to the preparation of a defense, or are intended for
use by the prosecuting attorney as evidence at the trial, or were obtained from or belong to the
defendant, within the possession of, or reasonably available to the state, subject to the provisions of
this rule:
{c} “(3) * * * [A]ll laboratory or hospital reports, books, papers, documents, photographs, tangible
objects, buildings, or places[.]” (Emphasis added.)
{d} The staff notes to this rule change note:
{e} “This division expands the State’s duty to disclose materials and information beyond what was
required under the prior rule. All disclosures must be made prior to trial. This division also requires
the materials to be copied or photographed as opposed to inspection as permitted under the prior rule.
Subject to several exceptions, the State must provide pretrial disclosure of all materials as listed in the
enumerated divisions.” (Emphasis added.)
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not appear that appellant was given notice of the filing of this discovery.
{¶35} Consequently, we must determine if the omission of notice in this
instance amounts to reversible error under the tripartite test set out by the Ohio
Supreme Court in Joseph, supra. The prosecution’s failure to notify appellant that
the requested discovery had been filed with the court was in effect a “failure to
disclose.” A notice of filing with a certificate of service indicating a copy to appellant
filed with the clerk of court would have sufficed. Whether that failure to disclose was
a willful violation of the rule on the part of the prosecution is a more difficult question
to answer and one we need not reach. Appellant has not offered any explanation of
how foreknowledge of the information contained in the requested discovery would
have benefited him in the preparation of his defense and what, if any, prejudicial
effect he suffered as result of that omission.
{¶36} Accordingly, appellant’s first assignment of error is without merit.
{¶37} Appellant’s second assignment of error states:
{¶38} “THE TRIAL COURT ERRED IN ENTERING A JUDGMENT OF
CONVICTION AND SENTENCE ABSENT SUFFICIENT EVIDENCE TO SUPPORT
A CONVICTION.”
{¶39} Here appellant argues that the state failed to establish the elements of
a violation of R.C. 4511.21(D) and, therefore, the evidence was insufficient to support
his conviction. Specifically, he contends that the state failed to prove what type of
road I-76 is. He contends that was an element required for his conviction.
{¶40} On the other hand, appellee argues that it presented sufficient evidence
to prove that appellant operated his vehicle in excess of 65 miles per hour on a
highway. It points to Trooper Gurlea’s testimony that he clocked appellant travelling
at 91 miles per hour on Interstate 76 in Milton Township, Mahoning County, Ohio,
where the posted speed limit is 65 miles per hour.
{¶41} Sufficiency of the evidence is the legal standard applied to determine
whether the case may go to the jury or whether the evidence is legally sufficient as a
matter of law to support the verdict. State v. Smith (1997), 80 Ohio St.3d 89, 113. In
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essence, sufficiency is a test of adequacy. State v. Thompkins (1997), 78 Ohio St.3d
380, 386. Whether the evidence is legally sufficient to sustain a verdict is a question
of law. Id. In reviewing the record for sufficiency, the relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime proven beyond a
reasonable doubt. Smith, 80 Ohio St.3d at 113.
{¶42} The court found appellant guilty of violating R.C. 4511.21(D)(2), which
provides:
{¶43} “(D) No person shall operate a motor vehicle, trackless trolley, or
streetcar upon a street or highway as follows:
{¶44} “* * *
{¶45} “(2) At a speed exceeding sixty-five miles per hour upon a freeway as
provided in divisions (B)(13) and (14) of this section.”
{¶46} R.C. 4511.21(B)(13) and (14) provide:
{¶47} “(B) It is prima-facie lawful, in the absence of a lower limit declared or
established pursuant to this section by the director of transportation or local
authorities, for the operator of a motor vehicle, trackless trolley, or streetcar to
operate the same at a speed not exceeding the following:
{¶48} “* * *
{¶49} “(13) Sixty-five miles per hour for operators of any motor vehicle
weighing eight thousand pounds or less empty weight and any commercial bus at all
times on all portions of the following:
{¶50} “(a) Freeways that are part of the interstate system and that had such a
speed limit established prior to October 1, 1995, and freeways that are not part of the
interstate system, but are built to the standards and specifications that are applicable
to freeways that are part of the interstate system and that had such a speed limit
established prior to October 1, 1995;
{¶51} “(b) Freeways that are part of the interstate system and freeways that
are not part of the interstate system but are built to the standards and specifications
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that are applicable to freeways that are part of the interstate system, and that had
such a speed limit established under division (L) of this section;
{¶52} “(c) Rural, divided, multi-lane highways that are designated as part of
the national highway system * * * and that had such a speed limit established under
division (M) of this section.
{¶53} “(14) Sixty-five miles per hour at all times on all portions of freeways
that are part of the interstate system and that had such a speed limit on the effective
date of this amendment for operators of any motor vehicle weighing in excess of
eight thousand pounds empty weight and any noncommercial bus.”
{¶54} Trooper Gurlea, the only witness, testified as follows.
{¶55} On March 16, 2010, Trooper Gurlea was located on top of an overpass
bridge checking speeds. (Tr. 5-6). He noticed a green 2007 Toyota and estimated its
speed at over 85 miles per hour. (Tr. 6). The posted speed limit on public highway
Interstate 76, where the Toyota was driving, is 65 miles per hour. (Tr. 9). Using a
laser speed detection instrument, appellant’s vehicle registered traveling at 91 miles
per hour. (Tr. 9). He then caught up to appellant’s vehicle and made a traffic stop.
(Tr. 10).
{¶56} Trooper Gurlea further testified that he has been sufficiently and
adequately trained to use laser technology by his agency. (Tr. 7). Additionally, he
stated that in accordance with the manufacturer’s recommendation he performed a
distance calibration and a scope alignment verification calibration that day. (Tr. 7).
He then explained the procedure. (Tr. 7-8). Trooper Gurlea stated that based on
these calibration checks, he found both before and after his shift on the day in
question that the laser was working properly. (Tr. 8).
{¶57} This evidence was sufficient to support appellant’s speeding conviction.
Appellant does not contest the fact that the state presented sufficient evidence to
prove that he was speeding. Trooper Gurlea clearly testified that he visually
estimated the speed of appellant’s vehicle to be over 85 miles an hour and that he
registered his vehicle with the laser as traveling at 91 miles an hour. And Trooper
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Gurlea testified that the speed limit where appellant was traveling was 65 miles per
hour.
{¶58} Appellant only asserts here that the state failed to prove what type of
road I-76 is. Trooper Gurlea testified that appellant was travelling on Interstate 76,
where the posted speed limit is 65 miles per hour. All of the subsections appellant
cites to for support, R.C. 4511.21(B)(13)(a)(b)(c) and R.C. 4511.21(B)(14) use the
terms “freeways that are part of the interstate system.” And Trooper Gurlea
specifically testified that appellant was travelling on “Interstate” 76, making it part of
the interstate system. (Tr. 9).
{¶59} Given the standard of review for sufficiency of the evidence, where we
are to construe the evidence in the light most favorable to the prosecution, Trooper
Gurlea’s testimony was sufficient to demonstrate what type of road I-76 is and satisfy
that element of appellant’s speeding conviction.
{¶60} Accordingly, appellant’s second assignment of error is without merit.
{¶61} Appellant’s third assignment of error states:
{¶62} “THE TRIAL COURT ERRED IN ALLOWING IN EVIDENCE OF A
SCIENTIFIC TEST WITH NO EVIDENCE OF RELIABILITY.”
{¶63} Appellant argues that the state failed to comply with Evid.R. 702(C)(1)-
(3) when introducing evidence regarding the laser used to measure his speed. He
contends that the court improperly took judicial notice of the laser device.
{¶64} Appellee, however, argues that the court properly took judicial notice of
the accuracy of the laser device. It agrees that the court should have given a citation
to the case in which it had previously taken judicial notice, but argues that its failure
to do so does not constitute reversible error.
{¶65} “A judicially noticed fact must be one not subject to reasonable dispute
in that it is either (1) generally known within the territorial jurisdiction of the trial court
or (2) capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.” Evid.R. 201(B). Courts may take
judicial notice whether or not it is requested and at any stage of the proceedings.
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Evid.R. 201(C)(F).
{¶66} A laser device’s scientific accuracy is the type of fact that can be
judicially noticed. State v. Lloyd, 7th Dist. No. 01-CO-36, 2002-Ohio-3017, at ¶50,
quoting Columbus v. Dawson (Mar. 14, 2000), 10th Dist. No. 99AP-589. The
accuracy of a laser device may be established, such that judicial notice of its
accuracy can be taken in future cases in a jurisdiction, by: “(1) a reported municipal
court decision from that jurisdiction, (2) a reported or unreported case from the
appellate district covering that jurisdiction, or (3) the previous consideration of expert
testimony about a specific device where the trial court notes it on the record.”
Columbus v. Bell, 10th Dist. No. 09AP-1012, 2010-Ohio-2908, at ¶14, citing
Cincinnati v. Levine, 158 Ohio App.3d 657, 2004-Ohio-5992.
{¶67} At trial in this case, the following colloquy took place:
{¶68} “THE COURT: The court is taking judicial notice of the laser system. Is
that what you mean?
{¶69} “MR. TULUGU: Yes.
{¶70} “THE COURT: Yeah. That’s already occurred. There’s an entry on
record here with the court.
{¶71} “MR. TULUGU: Can I -- can I get a case number or anything like that,
sir?
{¶72} “THE COURT: I don’t know it off the top of my head, but you can get it,
yes.
{¶73} “MR. TULUGU: I’m trying to see -- there are, you know, some -- some
things that I think appeals court that -- the expert testimony on judicial notice should
be taken only on a reported case and, you know, some things like that, so I just want
to know if he [Trooper Gurlea] satisfy, you know, the --
{¶74} “THE COURT: This court has, the Supreme Court of Ohio as well, but I
can’t tell you case numbers.
{¶75} “MR. TULUGU: Okay.
{¶76} “THE COURT: But I’ve taken judicial notice as well.” (Tr. 12-13).
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{¶77} Here it is apparent that the trial court previously considered expert
testimony about the laser device in question and determined it to be accurate and
had also taken judicial notice of this fact in at least one other case. Because the
court itself had already determined the laser device to be accurate and had
previously taken judicial notice of this fact, it was proper for it to do so here.
{¶78} And while the court did not cite to its previous case on the record, it was
required to do so. In State v. Weist, 1st Dist. No. C-070609, 2008-Ohio-1433, the
defendant argued that the court was required to admit into evidence a judgment entry
from a prior case establishing that a court had previously taken judicial notice of the
device’s reliability. The Appellate Court found this argument unpersuasive stating
that in the case relied on by the defendant, the trial court had taken judicial notice of
a laser device’s reliability based solely on the holding of another trial judge in the
county municipal court, therefore necessitating a showing on the record that the other
judge had in fact taken judicial notice. Id. at ¶8. The Appellate Court distinguished its
case by noting that the trial court indicated that it had individually taken judicial notice
in prior cases. Id. at ¶9.
{¶79} Likewise, in the present case, the trial court stated that it had
individually taken judicial notice in at least one prior case. Thus, it properly took
judicial notice in this case as well.
{¶80} Additionally, appellant contends in this assignment of error that Trooper
Gurlea’s discussion of how he executed a laser test did not meet Evid.R. 702(C)(3)’s
requirement that the test was conducted in a way as to yield an accurate result
because Trooper Gurlea only testified as to how he usually performed such a test,
not how he performed this particular test.
{¶81} Evid.R. 702(C)(3) provides:
{¶82} “A witness may testify as an expert if all of the following apply:
{¶83} “* * *
{¶84} “(C) The witness’ testimony is based on reliable scientific, technical, or
other specialized information. To the extent that the testimony reports the result of a
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procedure, test, or experiment, the testimony is reliable only if all of the following
apply:
{¶85} “* * *
{¶86} “(3) The particular procedure, test, or experiment was conducted in a
way that will yield an accurate result.”
{¶87} As to this point, Trooper Gurlea testified that before his shift on the day
in question, he verified the calibration with both a distance calibration and a scope
alignment calibration. (Tr. 7). He stated that they both “checked out okay.” (Tr. 7).
He further testified that he did the same calibration check at the end of his shift and
found that his laser technology was working in accordance with its recommendations.
(Tr. 8).
{¶88} And as to his execution of the laser test on appellant’s vehicle, the
prosecutor asked Trooper Gurlea: “[D]o you remember where you placed the beam
on this particular Toyota?” (Tr. 9). To which Trooper Gurlea replied: “On all vehicles
I check I try to aim center mass to the front of the vehicle, mostly the lower portion,
the bumper grill area so I can get a better reflection, get a better, accurate reading.”
(Tr. 9). The question and answer reflect that Trooper Gurlea placed the beam on this
particular Toyota on the same area he places the beam on all other vehicles that he
checks, that being the center, front of the vehicle in the bumper and grill area. Thus,
Trooper Gurlea did testify about how he performed the test in question.
{¶89} Accordingly, appellant’s third assignment of error is without merit.
{¶90} For the reasons stated above, the trial court’s judgment is hereby
affirmed.
Vukovich, J. concurs.
DeGenaro, J., concurs.